Tripura High Court
Unknown vs Shri Pradip Majumder on 15 July, 2020
IN THE HIGH COURT OF TRIPURA
AGARTALA
R.S.A. No.48 of 2016
&
R.S.A. No.49 of 2016
R.S.A. No.48 of 2016
1. *****
As per Hon'ble Court's order dated
19.11.2018 passed in connected I.A.
No.01 of 2018, the names of LRs of
the appellant No.1 are incorporated in
the following way :
1(a) Smti. Manju Sarkar,
wife of late Haripada Sarkar
1(b) Smti. Himani Sarkar
1(c) Smti. Sudipta Sarkar
both are daughters of late Haripada
Sarkar
1(d) Shri Soumitra Sarkar,
son of late Haripada Sarkar
all are residents of Village-Chhataria,
Udaipur, P.O. Radhakishorepur,
PIN : 799120, P.O. Radhakishorepur,
District : Gomati, Tripura
2. Shri Dulal Majumder,
son of late Sukumer Majumder,
resident of Village-Chhataria, Udaipur,
P.O. Radhakishorepur, PIN : 799120,
P.O. Radhakishorepur,
District : Gomati, Tripura
............ Plaintiff-Appellant(s)
Page 2 of 24
-Versus-
Shri Pradip Majumder,
son of late Benode Ranjan Majumder,
resident of Village-Chhanban, Udaipur,
P.S. Radhakishorepur,
District : Gomati, Tripura
............Defendant-Respondent(s)
R.S.A. No.49 of 2016
1. Shri Dulal Majumder, son of late Sukumer Majumder, resident of Village-Chhataria, Udaipur, P.O. Radhakishorepur, PIN : 799120, P.O. Radhakishorepur, District : Gomati, Tripura ............Plaintiff-Appellant(s)
-Versus-
Shri Pradip Majumder, son of late Benode Ranjan Majumder, resident of Village-Chhanban, Udaipur, P.S. Radhakishorepur, District : Gomati, Tripura ............Defendant-Respondent(s) For Appellant(s) : Mr. D. Chakraborty, Sr. Adv.
Mr. H. Laskar, Adv.
For Respondent(s) : Mr. A. Bhowmik, Adv.
Date of hearing : 26.11.2019 and 25.02.2020*
Date of delivery of : 15.07.2020
Judgment & Order
YES NO
Whether fit for reporting : √
*Spoken to minutes
Page 3 of 24
HON‟BLE MR. JUSTICE S. TALAPATRA
JUDGMENT & ORDER
The appeals being RSA 48 of 2016 and RSA 49 of 2016 were admitted by this court on 30.11.2016 on the common set of substantial questions of law which read as under :
"(i) Whether Court can frame an issue beyond pleadings and in that sense whether issue No.5 framed by the appellate Court was beyond any pleadings ?
(ii) Whether the finding of the appellate Court on the additional issues framed by the said Court suffers from perversity ?"
As the substantial questions of law are identical in both the appeals and the decision on those questions will determine the fate of the suits, this court has combined both the appeals for disposal by a common judgment. The counsel for the parties did not project any reservation to this proposition for obvious reasons as the suits have interplay of facts as well. Before the substantial question of law is decided, the basic facts of both the suits are required to be placed.
RSA 48 of 2016
2. The appeal being RSA 48 of 2016 emerges from the judgment dated 26.08.2016 delivered in T.A.01 of 2007 [Pradip Majumder versus Haripada Sarkar and Another] by the District Judge, Gomati Judicial District, Udaipur. The said appeal being T.A.01 of 2007 [under Section 96 of the CPC] was filed challenging the judgment Page 4 of 24 dated 04.12.2006 delivered in T.A.05 of 2006 by the Civil Judge, Senior Division, Gomati Judicial District [formerly South Tripura Judicial District]. The said appeal was earlier dismissed by the judgment dated 01.08.2007 but the said judgment of the first appellate court was challenged in the appeal under Section 100 of the CPC being RSA 67 of 2008. By a common judgment dated 09.02.2016 delivered in RSA 36 of 2008, RSA 37 of 2008 and RSA 67 of 2008 were disposed of and the order of remand was passed by directing the first appellate court for deciding the first appeals afresh providing the due opportunity to the parties of being heard. By the judgment dated 09.02.2016, the first appellate court was directed to recast the issues on the basis of the pleadings and decide the appeals on merit. Even parties were given liberty to adduce additional evidence. A time-frame for disposal was proposed in the said judgment.
3. According to the plaintiffs of the suit, the suit land was purchased. One Hrishikesh Majumder [now deceased] and another Binode Ranjan Majumder [now deceased] had exchanged their land situated in the erstwhile East Pakistan with the legal representative of one Charu Gaji. According to the plaintiffs, Hrishikesh Majumder got 7.56 acre of land including the suit land. However, the deed of exchange was prepared in the name of mother of the defendant namely Mira Rani Majumder. Hence, the said property inclusive of the Page 5 of 24 suit property was held by her in banami on behalf of her brother-in- law, Hrishikesh Majumder. After death of Mira Rani Majumder, her legal representatives namely Tapan Majumder, Dulal Majumder and Pradip Majumder [sons] and Smt. Sandha Rani Majumder [daughter] executed a deed of release bearing No.1-1689 dated 30.04.1984 relinquishing their right, title and interest over the said property inclusive of suit land in favour of Hrishikesh Majumder. Hrishikesh Majumder died on 02.08.1993 leaving behind three legal representatives namely Mitra Majumder [wife], Priyo Darsha Majumder [son], Bhadra Majumder [Sengupta] [daughter]. They inherited the suit land. Those legal representatives sold out the suit land to the plaintiffs by the registered sale deed No.1-2493 dated 05.10.2004 and delivered its possession. During the survey settlement operation, the said land was recorded in the name of Mira Majumder on the basis of the deed of exchange. Some other persons claimed possession over that suit land and the dispute was settled amidst the proceeding being Misc. Case No.231 of 2005 under Section 145 of the Cr.P.C. According to the plaintiffs, by virtue of that settlement they were in possession and they used to grow paddy in the suit property. But when the suit was instituted, their name as the holder of the title was not mutated in the records of right, even though, they have been pressing for such mutation very hard. On the contrary, the defendant, the respondent Page 6 of 24 herein by filing his written statement denied the story of possession by contending that Hrishikesh Majumder or his legal representatives never resided in the State of Tripura. They used to make occasional visits. The suit property was in the custody of the defendant's father namely Binode Ranjan Majumder, since deceased. After death of Hrishikesh Majumder, Priyodarshan Majumder who was also the attorney of other legal representatives of Hrishikesh Majumder entered in a agreement for sale regarding the entire immovable property with the defendant. Out of the settled consideration money being Rs.2,75,000/-, the defendant paid Rs.1,01000/- as the earnest money on 27.09.2000 and he got the possession over the entire immovable property including the suit land. Thereafter, on 26.06.2004 the defendant paid another sum of Rs.1,00,000/- to Priyadarshan Majumder at Kolkata and requested him to execute the sale deed on receiving the remainder of the consideration money i.e. Rs.75,000/-. But Priyadarshan Majumder refused to execute the sale deed and the defendant filed a suit for enforcing the said agreement to sale being. T.S.19 of 2004 in the Court of the Civil Judge, Senior Division, South Tripura, Udaipur [as it then was]. The suit had proceeded ex parte. In the meanwhile, the suit property was attached in proceeding under Section 145 of the Cr.P.C. and the said order of attachment had been challenged by the defendant and also the validity of the proceeding as Page 7 of 24 aforestated was challenged. According to the defendant, the purchased deed as executed in favour of the plaintiffs by Priyadarshan Majumder is forged one and created in collusion. On recording the evidence and appreciation thereof, the Civil Judge, Senior Division by the judgment dated 04.12.2006 delivered in T.S.05 of 2006 [Annexure-3 to the paper book] the suit was decreed by declaring the title of the plaintiffs and directing the Sub Divisional Magistrate to hand over the possession of the suit land to the plaintiffs. In the perspective of the second appeal it may be mentioned that the following issues were paramount in the suit and those were decided in favour of the plaintiffs :
"2. Whether the plaintiffs have right, title and interest over the suit land?
3. Whether the plaintiffs were in possession of the suit land ?"
4. The said judgment dated 04.12.2006 was challenged in the first appeal being T.A.01 of 2007 by the defendant but the said appeal was dismissed and that was challenged in the second appeal being RSA 67 of 2008. As stated, this court by the common judgment dated 09.02.2016 set aside the said judgment and remanded the matter for further hearing on framing the appropriate issues and affording the opportunities of hearing to the parties etc. In terms thereof, the first appeal was reheard and decided by the impugned Page 8 of 24 judgment dated 26.08.2016 [T.A.01 of 2007]. The first appellate court have recast the issues and the following issues were framed, apart the issue relating to the maintainability of the suit and the extent of relief that can be granted by the court :
"2. Whether the plaintiffs have right, title and interest over the suit land?
3. Whether the plaintiffs are in possession of the suit land?
**** **** ****
5. Whether the suit is barred by prohibition of benami transaction [Prohibition Act, 1988]?"
5. By the impugned judgment, the first appellate court has observed that the plaintiffs have failed to prove the ownership of the vendor over the suit land and thus failed to discharge the burden of proof required by Section 101 of the Evidence Act. Even though, it has been held that in view of the admission made in respect of the predecessor of the plaintiffs [Hrishikesh Majumder], the defendant is estopped from claiming the ownership of the suit land. Consequentially, the other reliefs were denied. The conclusive part of the judgment is reproduced hereunder :
"15. Issue no.4. Whether the plaintiffs are entitled to get a decree as prayed for & Issue no.6. Whether the suit land is properly described or not.
Both the issues are being taken up together. In the plaint, description of suit land as given is as follows-Page 9 of 24
i) Subdivision-Udaipur, Tehshil and Mouja-Dhajanagar, Khatian no.815/1, C.S.plot no.1339/1458(P), RS plot no.2996(P), Class-Vitti, area-0.24 acre bounded by-
North-Pathway, South-Tapan Rn. Majumder & Ors, East- Village pathway, West-Bijan Deb & Ors.
ii) Subdivision, Tehshil, Mouja-Ditto, Khatian no.554/3, CS plot no.1360/1523, RS plot no.3000, Class-Vitti, Area-0.16 acre, bounded by-
North-Pathway, South-Tapan Rn. Majumder & Ors, East Village pathway, West-Sumati Majumder & Ors.
As regard, suit land under Sl.No.(i)i.e. RS plot no.2996, in the related khatin no.815/1 (one item of Ext.4 series), on the northern side of that plot name of one „Brojendra‟ is mentioned and in the possession column names of „Binode‟ (50% share) and „Kedareswar‟ (50% share) are mentioned. But in the plaint, on the northern side of that plot, „pathway‟ is mentioned which is apparently wrong, for, there is no explanation in the plaint or in evidence as to how pathway has been mentioned in the description of suit land. Similarly, as regard suit under Sl.No.(ii) above, on the northern side of suit plot no.3000(new), the word „pathway‟ is mentioned in the plaint schedule whereas, as per Khatian no.554/3 (one item of Ext.4 series) name of one „Borendra‟ is mentioned in the northern side of that plot, and there is also no explanation from the side of the plaintiff with regard to this dissimilarity. In the said Khatian no.554/3, the total area of said suit CS plot is only 0.12 acre, but in the plaint schedule as well as in the purchase deed of plaintiff, the area of said purchased plot has been shown as 0.16 acre which is much bigger than the actual area of that plot and in this regard also there is no explanation in the plaint or in evidence. Ld. Sr. Advocate, Mr. Debabrata Chakraborty argued that there is no defence taken by the defendant in this regard in his written statement or in the memo of appeal, so they are stopped from raising any such plea now. The submission of Ld. Sr. Advocate has some force no doubt, but for that reason the power of the Court is not restricted. The Court always owes a duty to look into this aspect to ascertain as to whether, if any decree is granted in favour of the plaintiff, same will be executable or not and whether ultimately same will be rendered in-fructuous and in-executable. Thus, Issue No.6 is decided against the plaintiff and as a result of all the above said discussions and decision, the Issue No.5 is also decided against him and consequently the judgment and decree of Ld. Trial Court is held to be erroneous."
Page 10 of 24
RSA 49 of 2016
6. The appeal being RSA 49 of 2016 emerges from the judgment dated 26.08.2016 delivered in Title Appeal No.19 of 2017 [Pradip Majumder versus Dulal Majumder] by the District Judge, Gomati Judicial District. The said appeal being T.A.19 of 2007 [under Section 96 of the CPC] was filed challenging the judgment dated 30.06.2007 delivered in T.S.07 of 2006 decreeing the suit. Thus, the defendant filed the said first appeal and the said judgment was challenged in that appeal. The said appeal was dismissed initially by the judgment dated 14.05.2008. Thereafter, that defendant-appellant preferred the appeal under Section 100 of the CPC being S.A.37 of 2008 before the Gauhati High Court which had, at the relevant point of time, the jurisdiction to entertain and adjudicate such appeal. The said appeal was analogously decided with another appeal being S.A.36 of 2008 [corresponding to RSA 67 of 2007]. By the common judgment dated 09.02.2016 those appeals were allowed by setting aside the judgments of the first appellate court, but the first appeals were remanded for decision afresh after providing opportunity to the parties of being heard. It has been also observed that the first appellate court shall give its findings as regards the issues framed by the trial court. It has been categorically observed that in Title Suit 08 of 2006 [relating to RSA 48 of 2016] there had been no issue framed in respect of Page 11 of 24 possession. Thus, there had been direction to recast the issues and decide the appeals on merit. If the appellate court were not in a position to decide the appeals on the basis of the evidence on record, the said court shall be at liberty to allow the parties to adduce additional evidence. There was a time-frame of four months fixed for deciding the issues. In Title Suit being T.S.07 of 2006, the following issues were framed by the trial court :
"1) Whether the suit is maintainable in its present form and nature?
2) Whether the plaintiff has right, title and interest over the suit land?
3) Whether the plaintiff has possession over the suit land?
4) Whether the plaintiff is entitled to the decree as prayed for?
5) What other relief/reliefs the parties are entitled?"
The first appellate court on remand and having regard to the direction passed by this High Court framed one additional issue for adjudication of the dispute as raised in T.S.07 of 2006. The said additional issue reads as under :
"6. Whether the suit is barred by prohibition of Benami Transaction (Prohibition) Act, 1988."
7. In the suit, the plaintiff has pleaded that the predecessor of the vendor of the plaintiff was one Hrisikesh Majumder [now deceased]. Hrisikesh Majumder and Binode Ranjan Majumer [now Page 12 of 24 deceased], father of the defedent [the respondent in this appeal] exchanged their landed property situated in East Pakistan with one land holder in India and thus Hrisikesh Majumder got 7.56 acre of land inclusive of the suit land by way of exchange. According to the plaintiff, when the deed of exchange was prepared and executed, it was executed in the name of Mira Rani Majumder [now deceased]. Mother of the defendant, Mira Rani Majumder, according to plaintiff, held the property inclusive of the suit property as benamder for and behalf of her brother-in-law, Hrisikesh Majumder. After death of Mira Rani Majumder, her legal heirs namely Tapan Majumder, Dulal Majumder and Pradip Majumder [the defendant in the suit and the respondent in this appeal] and Smt. Sandha Rani Majumder had executed a deed of release bearing No.1-189 dated 30.04.1984 relinquishing their right, title and interest over the said property inclusive of the suit land in favour of Hrisikesh Majumder. Hrisikesh Majumder died on 02.09.1993 leaving behind his widow Smt. Mitra Majumder, son Priya Darshan Majumder and daughter Bhadra Majumder [Sengupta]. Those legal heirs got the property by way of inheritance. Mitra Majumder [the widow] and Bhadra Majumder [the daughter] executed one deed of power of attorney in favour of Priya Darshan Majumder. By virtue of the said power of attorney, Priya Darshan Majumder for himself and for other two coparceners sold the Page 13 of 24 suit land to the plaintiff by the registered sale deed No.1-2494 dated 05.10.2004. Accordingly, possession of the suit land was handed over to the plaintiff but the record of rights continued in the name of Mira Rani Majumder.
8. The plaintiff applied for mutation of the records of right in his name but till the time of instituting the suit, such mutation was not done. On 16.04.2006 some strangers tried to trespass into the suit land but that was resisted. Out of apprehension, the suit has been filed for declaration of title, confirmation of possession and perpetual injunction. By filing the written statement, the defendant denied the description of the suit land [see para-10 of the written statement] stating that the suit land as described to be under Khatian No.555/1 and C.S. Plot No.1343(p) corresponding to R.S. Plot Nos.3036 and 3036/3391 is not at all correct. The area of the suit land measuring 0.10 acre is not at all covered by the said plot. Therefore, the suit land is imaginary. It has been also asserted in the said written statement that the boundary as mentioned in the schedule are non-existent. In the written statement, the defendant had also denied the transfer of the suit property in favour of the plaintiff by the legal heirs of Hrisikesh Majumder. It has been also denied that there had been any attempt of dispossessing the plaintiff and hence there is no cause of action for institution of the suit. In para-19 of the written statement it Page 14 of 24 has been asserted that "the lands of said Hrisikesh Majumder was all along in the possession and in custody of the father of the defendant namely Binode Ranjan Majumder."
9. According to the defendant, Priya Darshan Majumder under due authorization entered into the agreement of sale for the entire landed property under Mouja Dhajanagar and Tepania measuring 4.47 acre for a consideration of Rs.2,75,000/-. Out of that, earnest money of Rs.1,1000/- was accepted on 27.09.2000. It has been further asserted that on 26.06.2004, the defendant paid further sum of Rs.1,00,000/- to the said Priyadarshan Majumder at his residence at Kolkata and requested him to execute the sale deed in favour of the defendant after receiving the remainder of the consideration money i.e.Rs.74,000/-. But Priyadarshan Majumder did refuse to get the sale deed registered in terms of the purported agreement. As a result the defendant filed a suit against Priyadarshan Majumder being T.S.19 of 2004 in the Court of the Civil Judge, Senior Division. At the time of filing the written statement the suit was pending and it was proceeding ex parte against Priyadarshan Majumder. A police report was filed against the defendant on 27.07.2005 on allegation that the defendant attempted dispossession through some labourers. The said proceeding under Section 145 of the Cr.P.C. was challenged in the court of the session Judge by filing a Page 15 of 24 revision petition but the same was dismissed. Another petition under Section 482 of the Cr.P.C. challenging the order of the Session Judge was filed being Crl.Pet.No.04 of 2006. But the defendant has contested the fact that Priyadarshan Majumder ever visited Udaipur and executed the sale deed in favour of the plaintiff. According to him the sale deed as shown was executed in favour of the plaintiff is a collusive and manufactured document. Having framed the issues as noted above and on recording the evidence, the trial Court decreed the suit by declaring the title and possession in favour of the plaintiff and by passing a decree of perpetual injunction restraining the defendants from interfering with peaceful possession of the plaintiff. The defendant filed an appeal under Section 96 of the CPC being T.A.19 of 2007 in the Court of the District Judge. The outcome of the said appeal has been discussed already. But on remand in terms of the judgment dated 09.02.2016, the first appellate court having regard to the issues that framed has observed by the judgment dated 26.08.2016 that the deed of relinquishment was valid at least in respect of movable properties inasmuch as the deed of release in view of the decision of the apex court in Kuppuswami Chettiar versus Arumugam Chettiar reported in (1967) SC 1395 may operate as conveyance, if the document clearly discloses an intention to effect a transfer. The first appellate court found the release deed as executed Page 16 of 24 by the legal heirs of Mayarani Majumder was expressly a deed of transfer and in the release deed it has been clearly observed that their mother did not have any ownership over that land and the legal heirs cannot inherit any better right. Even then, finally the first appellate court has observed that the defendant may be estopped from challenging the title of Hrisikesh Majumder. Admission by the defendant as noted before has not been considered as a conclusive proof. Strangely the first appellate court has decided that the plaintiff is not entitled to declaration of title as the title of property cannot be held to have devolved to Hrisikesh Majumder. Thus the appeal was allowed by setting aside the judgment dated 30.06.2007 and the consequential decree.
10. Being aggrieved by the judgments, the plaintiff preferred these appeals and advanced the common set of substantial question of law.
11. Mr. D. Chakraborty, learned senior counsel assisted by Mr. H. Laskar, learned counsel appearing for the appellant has quite categorically submitted that the deed of release bearing No.1-1689 dated 30.04.1984 executed by all legal heirs of Mayarani Majumder in whose name the land stands recorded has not questioned by the defendant. As it would appear that no issue was either framed by the trial court or by the first appellate court in respect of validity of the Page 17 of 24 said release deed. On the contrary the defendant has admitted that the land belonged to Hrisikesh Majumder, the predecessor of the plaintiff and the defendant had entered into agreement for purchasing the entire land of Hrisikesh Majumder from his legal heirs. In the common judgment and order dated 09.02.2016 delivered in RSA 36 of 2008 and RSA 37 of 2008 as referred before this court had occasion to observe in para-8 as follows :
"8. This court has gone through the findings made in all the three cases, from which it appears that the learned appellate court failed to consider each case on its own merit. Rather, in a whimsical manner he has said that the learned trial court has not committed any error of the time of passing of the impugned judgment and decree in favour of the respondents as the respondents had purchased the suit land from the legal heirs of one Hrisikesh Majumder and it was not denied by anyone."
12. Without making any comment on the above observation inasmuch as the first appellate court has reconsidered the entire matter with additional issues so framed and came to the above findings to reverse the judgment of the trial court. The common substantial questions which have been formulated for determining this appeal have been reflected in the order dated 30.11.2016. Let us examine those questions in the perspective fact as laid before.
"(i) Whether Court can frame an issue beyond pleadings and in that sense whether issue No.5 framed by the appellate Court was beyond any pleadings ?
Issue No.5 as referred above reads as under :
Page 18 of 24
Whether the suit is barred by Benami Transaction (Prohibition) Act, 1988. That issue was framed as the additional issue by the first appellate court with the authority given by the said common order dated 09.02.2016. The relevant provision of Benami Transactions (Prohibition) Act, 1988, as it was before the amendment which came into force on 01.11.2016 is reproduced below :
"4. Prohibition of the right to recover property held benami- (1) No suit, claim or action to enforce any right in respect of any property held benami against the person in whose name the property is held or against any other person shall lie by or on behalf of a person claiming to be the real owner of such property. (2) No defence based on any right in respect of any property held benami, whether against the person in whose name the property is held or against any other person, shall be allowed in any suit, claim or action by or on behalf of a person claiming to be the real owner of such property. (3) Nothing in this section shall apply,-- (a) where the person in whose name the property is held is a coparcener in a Hindu undivided family and the property is held for the benefit of the coparceners in the family; or (b) where the person in whose name the property is held is a trustee or other person standing in a fiduciary capacity, and the property is held for the benefit of another person for whom he is a trustee or towards whom he stands in such capacity."
In the considered view of this court, the property of Hrisikesh Majumder was held as a trustee standing on a fiduciary capacity by Mayarani Majumder and thus Section 4(a) of the said Act will provide necessary immunity to the transaction carried out by executing the release deed.
The first appellate court has examined the release deed to consider whether the title was with Hrisikesh Majumder or not. But it Page 19 of 24 was nobody's case that any title has been claimed on the basis of benami in the suit.
13. Mr. A. Bhowmik, learned counsel appearing for the respondents has raised an objection that after the said Act of 1988 came into force on 19.05.1988, no right can be asserted on the basis of benami property. Section 4 creates prohibition to recover property held benami. At this juncture, it would be apposite to note that the release deed was executed on 30.04.1984 and nobody has challenged its validity. Thus, framing of that issue was not based on the rival pleadings. The first appellate court however was entitled to consider whether the release deed bearing No.1-1689 dated 30.04.1984 caused transfer of title or not.
14. Having keenly appreciated the analogy given by the first appellate court, this court has no difficulty in accepting that the burden of proving the title lies on the person who claims such title. This is not in dispute that the release deed was duly registered. Even there is no dispute that no exchange deed was executed in favour of Hrisikesh Majumder. But after death of Mirarani Majumder, her legal heirs executed the said deed of release. The defendant's contention as devised by way of argument is not reflected in the written statement that the deed of release does not create the ownership. On the contrary the defendant has admitted the ownership of Hrisikesh Page 20 of 24 Majumder in respect of the suit land and other lands as described in the said release deed. The defendant has entered into the agreement to sale with the legal heirs of Hrisikesh Majumder. Thus, the other peripheral facts therefore of no value. The only question that is of some significance is that whether the title to a property was passed by the said release deed. In Kuppuswami Chettiar(supra) the said issue was examined by the apex court. It has been held that a registered instrument styled as a release deed releasing the right, title and interest for valuable consideration may operate as a conveyance if the document clearly disclosed an intention to effect the transfer. If there is no consideration and the release is to be considered gift within the meaning of Section 123 of the Transfer of Property Act, 1882. Such gift may be effected by the registered instrument or by release deed executed by the donor. It has been held succinctly by the apex court as follows :
"Consequently, a registered instrument releasing the right, title and interest of the releaser without consideration may operate as a transfer by way of gift, if the document clearly shows an intention to effect the transfer and is signed by or on behalf of the releaser and attested by at least two witnesses."
The first appellate court has sensibly extracted the recital of the said release deed [Exbt.1] for purpose of calling out the intention of the release deed. The relevant part therefore from the recital of the release deed is reproduced hereunder : Page 21 of 24
"Our mother late Mira Rani Majumer had not ownership in the land specified in the schedule and there was no reason to accrue any ownership therein by our mother. After death of Late Mira Rani Majumder, we or any of our other co-sharer did not accrue any right therein and there is also no reason for accrual of any such right by us. You were all along the owner and possessor of the below scheduled land and you will remain so. The legal heirs of Late Mira Rani Majumder will have no right or claim in the land and if they on any occasion to claim so, it will be treated as invalid. To delete the name of late Mira Rani Majumder from the ownership register, and to mutate your name and to continue to enjoy the land by you by collecting revenue therefrom, we had/have no objection. In witness thereof we execute this deed of Nadabi or deed of release in your favour."
15. There is no ambiguity in the intention. It is a clear cut transfer but without any apparent consideration. Either it may be deemed as gift or it may be treated as release of the property by the person in whose name the property is held to a trustee or another person standing in a fiduciary capacity and the property is held for the benefit of the other person for whom he is a trustee or towards whom he stands in such capacity. There cannot be any doubt that Mayarani Majumder is a trustee who held the said property for benefit of Hrisikesh Majumder. Thus the final observation that the intention of the executants of the deed was not at all to transfer any land in favour of said Hrisikesh Majumder. It is a sort of no objection in enjoying land. Thus, what has been observed is that the said deed of release cannot be treated as gift. Moreover, when the first appellate court had observed that the first appellate court has committed a grave error by observing that even though there are two attesting witnesses in the Page 22 of 24 deed of release. But they were not examined in proving the execution of the deed of release. This finding is completely uncalled for as the validity of release deed or its execution by the legal heirs was never questioned by anyone. When the said deed was admitted on identification by the deed writer, nobody had challenged its admission. Even none has challenged its admission in the appeal. Therefore the final inference drawn by the first appellate court is grossly perverse and unsustainable and accordingly that stands interfered with. Even though the principal of estoppel can operate against the defendant, but as this court is of the view that the release deed [Exbt.1] is a deed of transfer which has been validly proved, no further examination of the said deed is required. The deed of release [Exbt.1] stands proved as the deed of transfer. Accordingly, the declaration of right, title and possession as made having regard to the said deed of release cannot be faulted with. As consequence thereof, the plaintiff is entitled to a decree of perpetual injunction against the defendant on the basis of the title and the contemplated threat of dispossession.
16. Mr. Chakraborty, learned senior counsel while speaking to the minutes has stated that if the release of deed is a deed of transfer of title, the revenue authority is under legal obligation to mutate the record, first in favour of Hrisikesh Majumder, thereafter to his legal heirs and finally to the plaintiff who had purchased the suit land by a Page 23 of 24 sale deed duly executed. Even though there had attempt to raise some challenges against its valid execution. But no evidence in order to discharge the onus has been led by the defendant and hence, such attempt fell flat.
17. This court is of the view that if the title is established in favour of the vendor and the vendor does not raise any objection as regards the execution of transfer, none can have the locu standi to challenge the validity of the deed of transfer [Exbt.3]. As such, the plaintiffs title cannot be questioned by the defendant and he is estopped from questioning the transfer in favour of the plaintiff. Moreover the pleadings relating to non-execution of the deed of transfer [Exbt.3] by the legal heirs of Hrisikesh Majumder have not been proved complying the requirement of Section 103 of the Evidence Act.
(ii) Whether the finding of the appellate Court on the additional issues framed by the said Court suffers from perversity ?"
From the discussion made above, it is evident that the finding of the first appellate court in respect of the additional issue as referred in the substantial No.1 is perverse.
18. Having discussed as such, this court is of the view that the plaintiffs are entitled to get a declaration of right, title and interest of Page 24 of 24 the suit land in his favour and he is also entitled to get a declaration in respect of possession of the suit land and accordingly, his possession over the suit land is confirmed.
As consequence thereof, the plaintiff is entitled to a decree of perpetual injunction restraining the defendant or his man or agents from entering into the suit land and disturbing the peaceful possession of the plaintiff. As corollary, the impugned judgments and decrees are set aside. The judgment and decree of the trial court are restored.
In the result, the appeals are allowed.
Draw the decree accordingly.
Send down the LCRs thereafter.
JUDGE Sabyasachi B